"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." — Constitution of the United States of America, Fourth Amendment
Do you hear that sound? The government sure does. It is the sound of privacy and freedom from government dying in America. The government sees and hears an awful lot of things these days, a frightening amount of things, in fact.
Massive government surveillance, even of innocent citizens, is certainly nothing new. Some of the most famous cases, of course, could be found in Nazi Germany, fascist Italy, and under the communism of the Soviet Union. More surprising, perhaps, is that it is now arriving at a constitutional republic and representative democracy such as the Unites States of America.
The New York Times caused a stir in December 2005 when it reported that President Bush had signed an executive order allowing the National Security Agency to eavesdrop on international telephone calls and e-mails without a warrant. The legality and constitutionality of such a unilateral move by the executive branch is highly questionable, to say the least. Not to fear, we were told. The new power is applied only to suspected terrorists and is restricted to international communications. As President Bush noted, "one end of the communication must be outside the United States."
According to a USA Today report earlier this month, however, the government has been monitoring the domestic telephone calling records of tens of millions of Americans. The article, citing multiple inside sources, claimed that the NSA gained the cooperation of AT&T, BellSouth, and Verizon to amass "the largest database ever assembled in the world," and has been compiling the database since shortly after the September 11, 2001, attacks. According to the sources, the NSA's goal is "to create a database of every call ever made."
AT&T is being sued by civil liberties group the Electronic Freedom Foundation for violating privacy laws and the Constitution by cooperating with the NSA's surveillance programs. Internal company documents revealed that the company installed spying equipment in its San Francisco office and provided the NSA with a "secret room" to monitor customer e-mail messages. Verizon and BellSouth are facing similar lawsuits. Both companies have denied providing the NSA with bulk call records.
According to the USA Today article, the only major telecommunications company not to turn over call records was Qwest, which reportedly withstood the government's appeals to its "patriotism," then threats of losing future government contracts, in refusing to turn over the records. Wary of compromising its customers' privacy and violating the Communications Act, which explicitly prohibits telephone companies from giving out information about their customers' calling habits (without a warrant), Qwest requested that the NSA take its proposal to the Foreign Intelligence Surveillance Act (FISA) court and/or get a letter of authorization from the U.S. attorney general's office. Tellingly, the NSA balked because it felt its request might be rejected as unreasonable.
In response to the domestic surveillance revelations, President Bush called a hasty press conference in which he asserted, "We're not mining or trolling through the personal lives of millions of innocent Americans." Of course, this is precisely what the government is doing. If probing millions of telephone records of innocent citizens looking for patterns is not "mining or trolling through the personal lives" of Americans, I don't know what is.
Bush's credibility on protecting Americans' privacy was further eroded when he nominated Air Force Gen. Michael Hayden, head of the NSA from March 1999 to April 2005 (during the time of the domestic surveillance program), for director of the CIA.
Both Bush and Hayden claim that their warrantless surveillance programs are legal. They believe this to be true because they seem to think the law is whatever they say it is! Without any effective checks on executive power, this has, unfortunately, come to be true in practice, if not in theory.
Secrecy and stonewalling have become defining characteristics of the Bush administration. This is no less true in the case of the warrantless surveillance programs. The Federal Communications Commission, which has the power to levy fines for violations of the Communications Act, has refused to investigate the NSA because it cannot obtain classified material. Replied Rep. Edward Markey (D-MA) to the FCC's decision: "We can't have a situation where the FCC, charged with enforcing the law, won't even begin an investigation of apparent violations of the law because it predicts the administration will roadblock any investigations citing national security."
As if the "national security" stonewalling defense were not enough, the government is threatening the journalists that report on such questionable programs. U.S. Attorney General Alberto Gonzalez implicitly threatened reporters when he claimed recently that the federal government has the authority to prosecute journalists or newspapers for publishing classified information (which can be defined to include anything the government doesn't want the public to know). Ironically, two ABC News reporters have claimed that a top federal law enforcement official told ABC that the government was using domestic surveillance to track the reporters' calls in order to identify confidential sources.
So the government spies on innocent Americans, claims it is legal (I guess we're just supposed to take their word for it and trust Uncle George, privacy laws and the Constitution notwithstanding), threatens the press not to report just what it is doing, and blocks any external investigation of its activities. Does this sound like the work of a government in a free society?
Sadly, even if the NSA's activities were found to be illegal and could somehow be prevented, there are easy ways to get around privacy laws in this country. One method that has gained increasing popularity is simply buying databases containing personal information from private companies. You see, the Privacy Act of 1974 limits how the government may use personal information and requires that it disclose what it does with that information, but the law only applies to information collected by the government. Thus, the government simply buys the information, instead of collecting it itself, and does with it what it will. According to a General Accountability Office report issued last month, the Departments of Homeland Security, Justice, and States spend millions of dollars each year buying commercial databases that track Americans' biographical information, phone numbers, and financial information. The Justice Department alone spent $19 million in fiscal year 2005 on commercial databases containing names, addresses, phone numbers, and other data.
The NSA's warrantless international eavesdropping and domestic surveillance programs are but the latest in a string of frightening attempts by the government to diminish privacy and collect information on Americans. What follows is just a sampling of such programs in recent years:
- Carnivore — Spawned in 1999 as a successor to the Omnivore program, Carnivore (later renamed "DCS-1000") was an FBI tool used to monitor all of an individual's Internet traffic and reconstruct the Web pages a subject visited just as the subject viewed them. It was also used to view e-mail messages and other information without a warrant, which was controversial until Congress explicitly permitted the practice in the 2001 USA PATRIOT Act.
- USA PATRIOT Act — The PATRIOT Act also authorized such government snooping as the examination of library and bookstore records and "sneak and peek" warrants, which allow the feds to search a person's home, office, or personal property without even informing him or her that a search has taken place.
- Operation TIPS — The Terrorist Information and Prevention Service was a program designed by the Justice Department to recruit millions of Americans, from truckers to utility workers to the neighbor next door, to spy on their fellow citizens and report "suspicious" activity to the government. The program began in 2002 but was quickly abandoned after public outcry led to its explicit prohibition in the Homeland Security Act of 2002, which created the Department of Homeland Security.
- Total Information Awareness — A Defense Department effort to create a grand database capable of providing a comprehensive profile of any American citizen, including such information as email, telephone calling records, credit card purchases and other financial information, travel itineraries, and medical histories. Information about the program came to light in 2002 and, despite a name change to "Terrorism Information Awareness," the program was largely defunded in 2004 due to public criticism, although some TIA programs reportedly continue to be funded in classified Defense and Intelligence budgets.
- CAPPS — The Computer-Assisted Passenger Pre-Screening System, initiated during the late 1990s, was a traveler profile system designed to collect information on passengers to preemptively identify terrorists. In 2003, the Transportation Security Administration proposed an expanded CAPPS II program, which would have cross-checked airline passengers' personal information and travel itineraries with a no-fly list and FBI "most wanted" lists, assigned a security risk level to each passenger, and required passengers to carry a "domestic passport" (i.e., a de facto national ID card). The program was cancelled by DHS after the GAO determined that the program failed seven of eight congressional requirements.
- National Security Letters — NSLs are "a form of administrative subpoena that can be issued by scores of FBI managers around the country," according to a recent Washington Post article. Since NSLs are not subject to court oversight, they allow the FBI a means of obtaining information without a warrant. The FBI issued some 9,200 NSLs to banks, Internet service providers, and other companies seeking detailed information on more than 3,500 American citizens or legal residents in 2005.
- Real ID Act — Though past efforts to create a national ID card have met with staunch resistance from civil libertarians and the public at large, Congress finally succeeded in establishing such an ID when it snuck the Real ID Act legislation into an $82 billion "emergency" military spending bill in 2005 (no politician wants to be seen as not "supporting the troops"). The act, which will take effect in May 2008, requires that state drivers licenses meet federal standards such as including personal information and being "electronically readable" (by magnetic strip, enhanced bar code, radio frequency identification, or whatever else DHS ultimately decides upon). This national ID card will be required for anyone wishing to open a bank account, travel on an airplane, collect Social Security payments, or utilize just about any other government service.
From a purely practical standpoint, all this collection of personal data (almost all of which is collected on innocent citizens) would not appear to be an effective means of preserving "national security." One of the strongest indictments of the government's intelligence efforts during the run up to the 9/11 attacks was that it was unable to process information that might have tipped off agents to an imminent attack or even led to the capture of some of the would-be hijackers. If the government could not effectively process the information it collected then, how in the world is it supposed to process an immensely greater pool of data? The answer is that collecting information on citizens is not so much a matter of preventing future terrorist attacks as it is about power and control. Just as "power tends to corrupt; absolute power corrupts absolutely," such an expansive database is inherently prone to abuse and, as we have just witnessed with the theft of 26.5 million veterans' personal data, negligence.
The truly sad thing is that Americans do not really seem to care that their privacy and liberties are being rapidly eroded. Nearly two-thirds of those polled did not have a problem with the NSA's domestic surveillance program.
Perhaps they should ask themselves: Would it be okay for government agents to follow you around all day, taking notes on who you talk to, who you do business with, what you buy, who you socialize with, what you do for fun, what you read? Would it be alright if the government mandated that every American have a microchip with a GPS device implanted under his or her skin so citizens' movements may be tracked at all times? After all, the difference between these scenarios and present government surveillance of citizens is just a matter of degree.
Once upon a time, it seemed virtually all encroachments of our wealth and our liberties were done in the name of "the children." Now the state's transgressions are done in the name of "the terrorists." Perhaps 9/11 did change everything after all! Of course, nothing has really changed, only the rhetoric.
As John Philpot Curran remarked in 1790, "It is the common fate of the indolent to see their rights become a prey to the active. The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime and the punishment of his guilt."
The government will continue to encroach upon our privacy and our freedoms until we demand that our rights be preserved and our government's power and scope be reduced accordingly. It is time to hold the politicians and bureaucrats accountable for their transgressions.
Adam Summers is a policy analyst at Reason Foundation.